Judging Under Fragmented Politics and Polarized Society: Courts Against Autocratization in Brazil

Constitutional law often portrays courts as the final defenders of democracy. When countries undergo processes of autocratization and experience significant social polarization, it is not atypical that courts feel more empowered to exert their role of safeguarding constitutional democracy. Interestingly, the interdependent relationship between parliaments and courts in such situations is not extensively discussed in comparative constitutional law, despite political science highlighting that courts heavily rely on parliaments to protect constitutionalism. This article examines the relationship between party fragmentation and its implications for strengthening the judiciary’s role in safeguarding democracy. Political fragmentation, by complicating coordination, tends to increase the costs of co-optation. In such a fragmented environment, courts may find the necessary political support to assertively challenge potential autocratization processes. To this end, the article examines the case of Brazil under Bolsonaro, analyzing the behaviors of Congress and the Courts during and after his presidency. The argument suggests that, under certain conditions, party fragmentation can serve as a safeguard against autocratization processes. Using the Brazilian case as a reference, this article examines the circumstances in which such a positive outcome may potentially be realized.